Will America follow other presidential regimes down the road to one-man rule, or will it return to the imagined country of the past?
The Reuters news agency recently offered up a headline that is typical of our current moment but also very curious: “Chevron diversity ratio to improve as layoffs progress.” With corporate America long ago joining the “diversity” bandwagon, this story hardly rates as news at all, though a moment’s reflection should raise some alarm bells—and maybe even some serious legal questions—about how radically America’s social compact has shifted.
That Chevron’s diversity ratio will improve with layoffs must mean that the layoffs will be disproportionately coming from the ranks of white males. And the text of the story confirms this. Senior executives are being required to re-apply for their jobs, and Chevron’s chief human resources officer has said the company has a target of increasing the proportion of minority and women senior executives from the current 22 percent to 29 percent through this process.
You might think that an openly discriminatory process like this runs afoul of Title VII of the Civil Rights Act of 1964. Title VII bans employment discrimination on the basis of race or sex as well as protecting the seniority of existing employees, unless it can be demonstrated that an employer has consciously discriminated in past hiring, a practice there is no evidence Chevron has engaged in. But despite the clear language of both the Fourteenth Amendment’s equal protection clause and the employment clauses of the Civil Rights Act of 1964, the federal courts and the immense civil rights bureaucracy that arose in the 1960s have turned the clear color-blind non-discrimination language on its head.
A New Constitutional Regime
The perversion of civil rights law and culture has been the focus of extensive criticism for a long time now, but seldom with the wide-angle view of Christopher Caldwell’s The Age of Entitlement: America Since the Sixties. This sprawling single-story ranch house of a book covers a lot of ground but with a small built-out footprint, offering up a number of contestable judgments and generalizations on just about all the hot button topics of the last generation, such as technology, globalization, debt and taxes, feminism, housing policy, and immigration. But it is the central argument that arrests the reader’s attention—that the civil rights revolution of the 1960s was indeed a real revolution imposing a new constitutional order, one that pretended it wasn’t overthrowing the old order, and one which Americans have voted repeatedly to halt or roll back but to no avail. It is significant that Caldwell puts the issue as follows in his first statement of the thesis: “Plainly the civil rights acts had wrought a change in the country’s constitutional culture.” In other words, Caldwell understands “constitution” in the Aristotelian sense of a “way of life” rather than in the usual institutional and legal sense.
Caldwell performs a great service in helping us to see the centrality of the way civil rights reform became the cornerstone of our new constitutional regime that connects to the wider expansion of the welfare state and culminates in the overarching phenomenon of “political correctness.” The deliberately obfuscated straddle of civil rights, which articulates the general principle of non-discrimination while mandating race-consciousness in practice for “protected classes,” requires more than just ambiguous legal regimes and deceptive euphemisms. It ultimately requires the progressive censorship of anyone who dissents or criticizes the civil rights narrative, involving “a partial repeal of the First Amendment.” Witness how it is now impermissible to criticize Black Lives Matter on a college campus—or newsroom—and how the charge of “racism” is now the go-to epithet to halt debate or dissent on more and more questions. Feminism followed the same pattern, such that it is no longer allowed even to cite empirical data on differences between the sexes.
Although Caldwell doesn’t directly say it, he hints at the end that the only way back to the old constitution is the repeal of the civil rights laws (a proposition so outlandish that it has only been openly advocated by Richard Epstein in his 1992 book Forbidden Grounds: The Case Against Employment Discrimination Laws) but on the narrow and wonky ground that civil rights laws fail a social welfare function test—a line of attack that won’t stir the soul. Instead, Caldwell leaves us with the cliffhanger of Trump’s election, and whether he will yet turn out to be a tribune of popular sovereignty against our new PC regime.
Seldom has a brand-new book been as overtaken (and vindicated) by events as this one while the ink is practically still wet. The hyperdrive of the left’s “racism-all-the-way-down” narrative and elevation of Black Lives Matter in the aftermath of George Floyd’s death is a real-time demonstration of his thesis worthy of Euclid. Caldwell calls Black Lives Matter not merely a party of revolution, but “a party of race war.” One hopes that Caldwell is already working on a lengthy epilogue to a paperback edition that will extend his analysis to the events of the spring and summer (and fall?) of 2020.
Today’s racial tensions raise a larger point about which we should all be more direct. For decades sensible people have been asking how we made the seemingly imperceptible shift from the principle of color-blind equal rights and non-discrimination to a doctrine of “diversity” that means its opposite. Lots of histories walk through key milestones such as JFK’s and LBJ’s original executive orders that set “affirmative action” in motion, to the Griggs case that introduced the powerful “disparate impact” theory, to the ruinous Bakke case that began the transformation of “diversity” into an identitarian ideology, and the long succession of drip-drip-drip consent decrees that have all helped to establish a de facto quota regime. Caldwell touches briefly on these major milestones, but is after something bigger and beyond merely the law.
That the civil rights revolution has amounted to an entirely new understanding of individual rights, equality, and the Constitution itself is not a new thesis. This story has seldom been better told than in Herman Belz’s 1991 book, Equality Transformed, to which Caldwell’s narrative should be compared as a baseline. Belz ended as starkly as Caldwell: racism itself “is not really about race relations or civil rights. In fact, it is a political strategy for constitutional revolution . . . The struggle to define American equality will determine whether the United States will remain a free society.” Add to this Harvey Mansfield’s classic 1984 essay “The Underhandedness of Affirmative Action,” in which he argued civil rights law had become “a threat to constitutional government.”
There is a simple fact missing from our understanding of civil rights history and not highlighted as much as it deserves to be in Caldwell’s narrative: Democrats lied from the beginning, though Republican confusion and credulity should not be overlooked or excused. (Vice President Nixon supported some early quota proposals in the Eisenhower administration, for example.) As early as the Kennedy Administration, some civil rights groups (the National Urban League in particular) had started demanding explicit quotas as a remedy for past discrimination, and the Kennedy Administration pushed the Labor Department in that direction. But JFK had misgivings, saying in 1963 that “I think we ought not to begin the quota system.”
Few issues were as exhaustively debated during the runup to the Civil Rights Act of 1964 as whether quotas or preferential treatment could ever be a remedy for racial disparities. The emphatic consensus of both parties was “No,” which is why specific anti-quota provisions were added to Title VII, thus assuring civil rights would be a bipartisan measure. Senator Hubert Humphrey, the floor manager of the CRA, said on the Senate floor: “If the Senator can find in Title VII [of the Civil Rights Act] any language which provides that an employer will have to hire on the basis of percentage or quota related to color, race, religion, or national origin, I will start eating the pages one after another, because it is not in there.” A year later Humphrey was Vice President, and President Johnson issued his Executive Order 11246 that started us down the road to race-preferential contracting and hiring in and through the federal government, albeit with indirect language that concealed what was going on.
Caldwell is after the essence of our new constitutional order and as such only touches on a few of the many incremental court cases and bureaucratic subterfuges of the civil rights story. This makes more glaring, however, his sharp criticisms of Ronald Reagan for not challenging this constitutional destruction more seriously. Denigrating Reagan has become very popular especially with the Trumpian right (which I find to be an ironic vindication since my own criticisms of Reagan’s failures on domestic policy in my 2009 Age of Reagan met with a chilly response at the time), and there is much to be said about how the Trump Administration has—consciously or unconsciously—learned from some of the Reagan-era mistakes and shortcomings.
It would be one thing if Caldwell placed Reagan alongside the disposition and actions of Presidents Nixon and both Bushes, but he doesn’t. On the contrary, his brief references to Nixon are admiring, and he seems to hint that Nixon’s promise to undo the Great Society was superior to Reagan’s and was only undone by the blunder of Watergate, which is only very narrowly true (the Watergate part). When it comes to the legacy of civil rights that Caldwell abhors, it is completely wrong. I’ll spare the details of how Nixon expanded racial quotas (such that Democrats actually attacked him once for being too open about it), and merely cite Herman Belz’s observation that Nixon’s civil rights initiatives reveal “the co-equal if not leading role played by the Republican Party in establishing racial preferences.
A narrative like Caldwell’s that is intended to provoke thinking about larger current issues is ordinarily not suitable for nitpicking about details, but he indulges so many aversions to what he thinks was Reagan’s comprehensive failure that it is impossible to let them all pass, and some are nearly indistinguishable from what the left has always said about Reagan. He scorns Arthur Laffer and his famous curve for being “not terribly rigorous” because of “its origins in a restaurant napkin rather than a classroom,” apparently ignorant, as are most journalists and many historians, of the serious analytical work of Robert Mundell in creating supply side economics, for which Mundell won the Nobel Prize. Likewise, Caldwell says “The difficulty of shrinking government led nobody in the president’s entourage to reconsider tax cuts.” This is flat wrong, full stop. There were vigorous internal White House debates on the matter, plus tax increases in every single Reagan budget after 1981—just not the income taxes that liberals wanted raised. (To cite just one specific example, Secretary of State George Shultz urged Reagan to embrace a 50-cents-per-gallon gasoline tax in the second term to reduce the deficit. And David Stockman sided with Democrats in wanting to scale back the 1981 income tax cuts.)
The tax question is connected to the spending question, which leads to this peculiar statement: “[T]he quarter-century after Ronald Reagan’s election should have been the easiest time to balance the budget in the history of the republic.” But we did balance the budget within 20 years of Reagan’s election, in part because the end of the Cold War did deliver a “peace dividend.” And how was that balanced budget squandered? George W. Bush’s ruinously expensive Iraq expedition goes unmentioned, but much more surprising in a book with “entitlement” in the title is the absence of any mention of Bush’s new entitlement, Medicare Part D—the only major entitlement program paid for entirely with borrowed money. Say what you will about the long-term instability of LBJ’s Medicare; at least it included a dedicated tax source to fund it. Bush pushed his new entitlement for the same reason Nixon pushed for a major expansion of Social Security benefits: to buy votes ahead of re-election. And while Reagan didn’t push hard enough to roll back our welfare state (a conclusion he reached in retrospect, as did Margaret Thatcher), at least his sole new entitlement program (catastrophic health coverage for seniors) was repealed within a year because Reagan had the presence of mind to make seniors pay for it, which they were unwilling to do.
Here Caldwell is on his most solid ground in directing us to the problem to which Reagan and each of his Republican successors have acquiesced through their tax policy: combine a social presumption of entitlement with a fiscal policy that offers $1 of government services for the price of 60 cents (or zero cents for many taxpayers, as Mitt Romney noted to his detriment), then demand for government will tend to be unbounded. It is easy for the public to rebel against paying for the welfare state if you don’t demand them to do so. (I got into a lot of trouble with my supply-side friends a decade ago for advocating much higher taxes on everyone on the simple theory that if Americans paid for all the government they received, they might want a lot less of it.)
Caldwell makes numerous other specific charges against Reagan and the 1980s that are superficial, factually deficient, or plain churlish, but it would be tedious to make the long march to correct them all. Other issues, especially the failed immigration reform of 1986 (and its backstory from the 1960s), are more sound, while some plausible cultural judgments could use more context and balance. Is it really correct to say that the Reagan era is the crucial period when the movements of the 1960s were consolidated? David Frum argued 20 years ago in How We Got Here that the 1970s was the decade that ratified and consolidated the revolutionary changes of the 1960s, while in the mid-1990s Michael Kelly had more than a thing or two on the significance of the Clintons and the legacy of the 1960s. And is it really sound to conclude that Reagan “handed away” the electoral fruits of a victorious popular insurgency?
Unfortunately we aren’t allowed a counterfactual parallel universe in which some other Republican had been elected in 1980, but we can look closer at the whole scene and reach some very different judgments. Which brings us foursquare back to Caldwell’s main focus on civil rights. And it is just here that we see a historicist presentism in Caldwell’s argument that “Claremonsters” usually avoid like the Nietzschean plague it is. The tacit premise of Caldwell’s argument is that Reagan deserves our scorn for not understanding the nature of the problem as we, having three more decades of experience and reflection to draw from, perceive it today.
When Reagan took office in 1981, the signs suggested we were moving away from racial preferences and other race-based coercion. Busing was in decline, and the Bakke case just two years before still seemed an important step away from race-conscious civil rights policy and not yet as the pyrrhic victory it turned out to be (hold this thought). Meanwhile corporate America wanted not a rollback in civil rights regulation but mere relief and streamlining of the heavy-handed process that mushroomed in the Carter years. The U.S. Chamber of Commerce and other business groups complained about paperwork (which had grown to absurd dimensions), not the bad principle underlying civil rights regulations. This Reagan delivered on, in keeping with a general fallback strategy across many domains of pursuing regulatory relief by executive action when real regulatory reform proved impossible either from congressional resistance or judicial roadblocks. (It is worth recalling in this context that the famous Chevron decision that spawned the eponymous doctrine was a case the Reagan administration won at the Supreme Court. No one at the time foresaw that it would become a linchpin of the administrative state, and it is mightily unfair now to blame Reagan’s team for not having our present perception of how it would play out.)
It is narrowly correct that Reagan’s civil rights strategy and actions were inconsistent. Belz argued this proposition 30 years ago, as did Raymond Wolter’s very detailed 1996 history, Right Turn: William Bradford Reynolds, the Reagan Administration, and Black Civil Rights. (Neither Belz nor Wolters appear in Caldwell’s bibliography or source notes.) But it is hardly fair to say that Reagan made no serious attempts at stopping the insidious direction of post-civil rights constitutionalism. He pondered a step no other Republican before or since has considered—rescinding LBJ’s EO 11246 that propelled affirmative action, but his cabinet was sharply divided and leading Fortune 500 CEOs lobbied Reagan personally against it. One mid-1980s survey of Fortune 500 companies found 88 percent saying they would maintain affirmative action hiring programs even if not legally compelled to do so.
More successful was the Justice Department’s litigation strategy, which steadily chipped away at the worst excesses of the disparate impact doctrine, and which by the end of the Reagan presidency had won several victories at the Supreme Court that looked to have turned back racial preferences in hiring and contracting. And then Reagan’s successor George H.W. Bush threw away these significant case victories by going along with Democratic Party demands for a “Civil Rights Restoration Act” to override these inconvenient rulings, which of course involved a new set of legal euphemisms and ambiguous language to disguise the real intent.
Caldwell does discuss the 1978 Bakke case which supposedly struck down racial quotas in college admissions but actually left them intact under heavy disguise. Here Caldwell missed a rare opportunity to advance the really contrarian argument that ought to be reconsidered today—that the Bakke case was wrongly decided. Rather than the dodge of “diversity” that has become an ideological and all-devouring institutional monster, we’d have been better off if the Court had said explicit quotas were constitutional. Nothing would have made the fact that we were living in the new constitutional order Caldwell describes more obvious—and also unacceptable. The inevitable friction among minority groups, as we see with the controversy over Asian admissions to elite colleges today, would doom an open quota regime. Who counts as a minority? How many more Elizabeth Warrens and Rachel Dolezals would we have under such a regime, and who would decide who is a bona fide minority for each numerical quota? It would collapse of its own weight.
Drawing up to an altitude above Caldwell’s 30,000-foot view, we might question the centrality of his civil rights critique with the wider phenomenon of the expanding welfare state. The connection is genuine, yet we see the same identitarian and politically correct trends in Europe, which did not (with minor exceptions) have chattel slavery, still less Jim Crow-style segregation, a Fourteenth Amendment, a Civil Rights Act of 1964, or affirmative action litigation. Our civil rights and welfare state regime seems part of a broader secular trend within western liberalism. The racial tinge of our controversies distracts us from considering whether both the welfare state and political correctness are more a disease of modernity than race simply. That possibility is even bleaker than Caldwell’s diagnosis of American constitutional decay. Much of this I learned from reading Caldwell’s previous excellent books on Europe. About America—and the Reagan era in particular—I am less sure he has nailed it.